Wednesday, May 29, 2013

Lawyer sued for failing to write up and sign woman's will nine days before she died

Bryan Mitchell did my will last year but took months to finalize it.  He must have had an optimistic view of my health

ESTATE lawyers will rush to write up informal wills and have them signed after a lawyer was successfully sued for failing to do a woman's will on-the-spot, nine days before she died.

The woman's son missed out on an increased slice of his mother's estate because the lawyer delayed having the new will signed because he was going on holidays.  The woman died before his return.

The son, who was to be bequeathed half his mother's family share of her estate under her instructions for the new 2010 will, was left only 25 per cent under the former will made in 2009.

He is expected to be awarded hundreds of thousands of dollars in damages.

Brisbane wills and estate lawyer Bryan Mitchell, of Mitchells Solicitors, said the NSW Supreme Court case delivered on May 2 had set alarm bells ringing.

Local estate lawyers would now make sure temporary wills were signed immediately, as they could be sued in Queensland courts for similar circumstances, he said.

Mr Mitchell said while most lawyers considered it good practice to get an informal will signed on the spot, it now would become essential practice, increasing the cost of making a will.

Sydney lawyer Graham W. Howe took complete instructions from Marie Fischer, 94, of Mosman, for a new will on March 25, 2010, but told her he would get her to sign it after his Easter holiday, the NSW court heard.

Mrs Fischer, who lived with a carer, agreed to wait about two weeks, but she became ill and died, leaving her 2009 will as her final will.

On March 25 she had given Mr Howe instructions to change her executor and increase her son Henry Fischer's family share of the estate to 50 per cent.

Expert legal witness Pamela Suttor told the court Mr Howe should have prepared an informal will on March 25, or at least obtained her signature on a note recording her intentions.

Justice Christine Adamson found that Mrs Fischer had been adamant about changes she wanted made to her will and Mr Howe was negligent and breached his duty of care by not making an informal will that day.

The judge said had the informal will been prepared and signed by Mrs Fischer she was satisfied it would have been accepted as her will under the Succession Act.

She said Mr Fischer was entitled to full net loss of the further 25 per cent of the estate, which Mr Fischer calculated was $824,447.


Middle-class bludging? It's a myth

FIRST there were families. Then there were "battlers". Then "working families". Now the political spin-cycle has moved on to "modern families". Going forward.

Elections in Australia are traditionally fought and won by parties appealing to the interests of middle-income families. So this will be a strange election campaign, with both parties promising to reduce your family income.

This week the Government will introduce legislation to abolish the baby bonus. Australia's treasurer-in-waiting, Joe Hockey, will wave it through, having argued our "age of entitlement" must come to an end.

But are Aussie families really a bunch of middle-class welfare bludgers? Economists are constantly calling for family payments to middle-income families to be reduced to reduce the "churn" in the tax and welfare system. Why take with one hand only to give back with the other?

Recent studies have shown the "middle-class welfare" bogey is more myth than reality. In a new paper, Peter Whiteford, a professor of social policy at the Australian National University, argues our family benefits system is, in fact, highly targeted at low-income families.

Prof Whiteford's calculations find Australia's poorest 20 per cent of households get about $435 a week in cash benefits from the government. The top 20 per cent get only $15 a week and of that, only $1 is family benefits - the rest is aged, disability and veterans' pensions.

The poorest 20 per cent of households also pay negligible income tax, while the top fifth of households by income pay $756 a week, on average.

If the government didn't tax and redistribute, the richest 20 per cent of households would have private incomes 21 times higher than the poorest 20 per cent. As it is, once taxes and benefits are factored in, the multiple is just three to one.

Australia's poorest 20 per cent of households receive 42 per cent of government cash benefits - almost twice the developed world average of 24.4 per cent.

According to Prof Whiteford: "The idea that there are vast amounts of wasteful social security spending that can be easily cut back simply does not accord with the reality that the Australian benefit system is the most targeted to low-income groups of any developed countries."

Truth is, Australian governments have been supporting families in one way or another since just after Federation.

Bob Hawke may continue to regret his ambitious 1987 pledge that no child would live in poverty. But his boost to low-income family support did substantially reduce child poverty in this country, by as much as 50 per cent in its first year, according to some estimates. Between 1985 and 2000, Australia dropped from sixth to 16th place in the developed world rankings of rates of child poverty.

Family payment rates grew under the Howard government thanks to the mining boom, and payments were expanded further up the income scale. The proportion of couple families with children who pay no tax rose from 16 per cent in 1982 to 26 per cent under the Hawke and Keating governments, and increased again to 29 per cent under Howard. But most of that was still tightly targeted to families in the $40,000-$70,000 income brackets.

Millionaire mums getting family tax benefits and the baby bonus were always the exception rather than the norm. (It is almost forgotten that it was John Howard as treasurer in 1978 who abolished the Maternity Allowance, the precursor to the baby bonus that had been in place since 1912.)

Since the global financial crisis, the Rudd and Gillard governments have done more than they care to admit to tighten eligibility for family payments. Indexing of payment rates to general prices - not wages, which tend to grow faster - has reduced annual payments by about $500 from what they would have been.

So, although we constantly hear of "middle-class welfare", in reality it's getting harder to find. Notable exceptions include Labor's non-means-tested "schoolkids bonus" - which is really just an ad hoc payment that should rightly be abolished by an incoming Coalition government.

The Seniors Card - which entitles bearers to discounted travel and shopping - also gives a group of Australians a benefit regardless of their capacity to pay.

The childcare rebate on out-of-pocket expenses is also not means-tested, meaning a high proportion of the benefit goes to high-income women.

The Grattan Institute estimates the annual Budget deficit will yawn to about $37 billion by 2023.

Axing the baby bonus saves only about $1 billion over four years. Fixing the Budget crisis will require tax hikes or politically painful spending cuts.  Baby, you ain't seen nothing yet.



Four current articles below

Greenie regulations on Qld. coal mines eased

A LOSS of about $750 million in royalties through the flooding of central Queensland coal mines over the past three years has pushed the Government into allowing more mines in the Fitzroy River basin to release water.

Deputy Premier Jeff Seeney said the plan will be put in place next wet season after a trial among four mines found no long-term impacts on water quality.

"The pilot program carried out over the last wet season shows that this legacy mine water can be released when there are sufficient river flows, while maintaining water quality," Mr Seeney said.

Mr Seeney said Central Queensland coal mines still have an estimated 250 billion litres of excess water as a result of the recent wet seasons.

"The government will undertake detailed discussions with coal mine operators in coming months to identify the optimal solutions that may be available for each mine," he said.

"Any amendments will need to be finalised well before the next wet season, to allow coal mines to be well prepared and for the supporting monitoring programs to be up and running.

More than 30 mines in central Queensland have been flooded in the past three years and unable to release that water until heavy rains can dilute the pollutants like salt.

Only two have been able to reduce any significant amount of water hampering production at most mines.

Only about 26 billion litres was released into creek and river systems during heavy rain in January.

He said the Government would look for more options to release the water, but any amendments will need to be finalised well before the next wet season, to allow coal mines to be well prepared and for the supporting monitoring programs to be up and running.

Environment Minister Andrew Powell said an independent assessment of the pilot had proved that the measures put in place ensured water quality for drinking, agriculture and the environment was protected.

"The data shows that adequate measures are in place to ensure water quality standards have been met and I am confident that we will continue to see that in the future," Mr Powell said.


Green funding rush fires loans row as $800M push defies Tony Abbott

THE Clean Energy Finance Corporation is planning to write up to $800 million in green loans before the election, defying the Coalition's call for the agency not to sign contracts before September 14 because Tony Abbott has vowed to scrap it.

The CEFC has revealed it is in "active discussions" with 50 projects seeking $2 billion and that an additional 119 project proponents have presented proposals that are seeking finance worth $3.3bn. The figures are contained in an email from the CEFC to the opposition pleading its case not to be scrapped if the Coalition wins the election.

The CEFC was established as part of the Gillard government's Clean Energy Future package to provide finance to clean energy projects that might not otherwise be able to raise funds through the commercial banking system. It receives an allocation of $2bn a year for five years which has been locked into the government's budget through legislation.

The scale of discussions under way between the CEFC and clean energy project proponents puts it on a collision course with the Coalition, which in February wrote to the CEFC asking it not to write any loans between July 1 and the election.

Opposition finance spokesman Andrew Robb said the Coalition was "deeply troubled by the indecent haste to start risking many billions of dollars of borrowed money".

"There is simply no valid reason for agreements to be struck, contracts to be signed or for funds to be meted out this side of the election," Mr Robb said. "It is unconscionable. We have been crystal clear in our opposition to the CEFC and in our resolve to abolish it. We will do whatever we can to prevent $10bn of borrowed money from being wasted."

CEFC chief executive Oliver Yates last night said the agency, which can begin writing loans from July 1, would do so in an orderly way and was planning to write about $1bn worth of loans every six months.

Asked what the CEFC could write between its start date of July 1 and August 12, when the pre-election caretaker period begins, Mr Yates said he would be happy if the CEFC could write between $600m and $800m. However, all agreements would be subject to extensive due diligence.

The CEFC has revealed the full value of the 50 projects in "active discussions" is put at $4.6bn and the 119 extra projects for which submissions have been received are worth more than $6bn.

In the email to the opposition, Mr Yates said there had been a "resounding positive response to date from the market, demonstrating the significant role which the CEFC can play".

He revealed the CEFC was working on a dozen projects in Victoria that would deliver jobs and growth "but all are now in question". "These projects have a total expected size of nearly $2.5bn," he said.

The letter also revealed the CEFC had tightened its lending criteria and it had removed an assumption that it would grant or lose 7.5 per cent of the investment portfolio.

"We determined that to operate commercially the CEFC would not make grants or what was termed 'immediately impaired loans'," Mr Yates wrote. "The making of such are inconsistent with the approach of being self-sustaining and commercial."

Mr Yates argued that the difference between the CEFC and a traditional financial institution was that "we don't seek maximum profits but seek to cover operating and funding costs, and use the potential to make higher profits to secure public policy benefits and reduce the cost of moving to a lower-carbon economy".

"We will participate alongside traditional financiers and may from time to time rub shoulders as we build our market presence and financial self-sufficiency," he said. "That said, the net effect of our participation in the market will be to increase available funding opportunities for the private sector, not reduce them."

Mr Yates said the CEFC was focused on being a sustainable institution and, where a loan was written below the bond rate for a public policy purpose, another might be written at a commercial rate to ensure the business was sustainable.

In his budget reply speech this month, the Opposition Leader repeated his vow to "scrap Labor's green-loans scheme for projects that the banks won't touch".

The corporation's chairwoman and Reserve Bank board member Jillian Broadbent has previously said there was "significant appetite" for funds and has signalled that the CEFC would seek to act according to its mandate to write loans, despite the opposition's request not to do so.


Mining industry releases report stating resistance to coal seam gas projects will end expansion and sacrifice many jobs

COMMUNITY activists fighting CSG projects with "myths" are putting at risk a potential $150 billion investment bonanza, a mining industry report to be released this week warns.

And the industry is pressing the Coalition to pledge tougher workplace laws and slashed regulation before the September 14 election.

Mining company executives are pointing to an opportunity to capitalise on growing liquified natural gas (LNG) markets which could be lost to gas producers in Africa and North America.

Seven of the 13 LNG plants being built around the world are under construction in Australia but further expansion opportunities could be lost. LNG now supplies nine per cent of the world's energy and this could rise to 15 per cent by 2020, with lower carbon emissions than from coal power.

LNG demand in the Asia-Pacific region is expected to rise from 160 million tonnes a year now to 320 million tonnes by 2025, the McKinsey study found.

"The window of opportunity for LNG projects is open for about 18 months. We have momentum on projects, and want to get through that window," the outgoing Australian chair of Shell Ann Pickard told reporters in Brisbane Sunday.

Liquified Natural Gas producers increasingly are turning to coal seam gas as conventional supplies run down or prove too expensive to mine.

But in some parts of Queensland and in NSW they are being fought by an unusual combination of Greens, farmers, and broadcaster Alan Jones, a group Mr Byers said was well organised and very well funded.

The Lock the Gates Alliance representing the resistance has accused mining companies of "riding roughshod over our governments and local communities".

Mr Byers said: "Call it for what it is: it is a campaign which is based on some ideological objections to having kore gas into our energy supply system as distinct to going for more renewables."

He said the research presented on CSG was being rejected by groups claiming it would harm water supplies and wreck productive pastures.

The miners also are pointing in particular to the significantly lower labour costs in North America.

Another industry executive said Australian labor costs were not only high against those of developing nations, they were greater than those of the US and Canada in similar work.

State and federal governments both Liberal and Labor are threatening mine expansions which could see an extra $13 billion in taxes and royalties paid by 2020, according to the report commissioned the the Australian Petroleum Production Exploration Association (APPEA).

"We do have some very big hurdles in front of us in order to keep this investment wave going," said the APPEA's chief executive David Byers on Sunday.

Mr Byers said in an election year there was "a lot of people who are looking to win friends and votes by raising the hurdles that we face even higher".

"And here I'm not just talking about the Greens," Mr Byers told reporters in Brisbane.

"In recent time we've seen government of both political persuasions at both federal and state levels prone to flip flopping on gas regulation."


Brisbane City Council to relax tree and vegetation protection laws

RESIDENTS will be able to trim street trees for the first time in almost 20 years and protected growths will become easier to remove from properties under sweeping changes to Brisbane's vegetation protection rules.

In a move likely to anger some community and environmental groups, Lord Mayor Graham Quirk will today announce the proposed amendments aimed at "ensuring people's lives and homes aren't put in unnecessary danger".

The changes to the Natural Assets Local Law will affect more than 60,000 Brisbane properties housing protected trees and could have implications for about 600,000 city street trees, including Moreton Bay figs, jacarandas, red gums and hoop pines.

Anybody wishing to trim or remove protected trees from their land will still have to apply to Brisbane City Council.

However, rather than just consider the tree's health, council will place more emphasis on risks to life or property and "nuisance issues".

Residents will also no longer have to commission an arborist report before starting work.

The council is also planning to lift a 20-year ban on residents pruning street trees affecting their properties.

Currently residents must call on council to request officers carry out even the most minor trimming of street trees.

Property owners will still have to flag the pruning work with council before getting to work but can gain approval on grounds including "safety, nuisance or presentation". Cr Quirk said the changes were a "reaction to growing community concern" about protected trees being put before the rights of residents.

"There will undoubtedly be opponents to these changes, but the January storms reminded us all how easily seemingly healthy trees can cause serious harm and common sense needs to prevail," he said.

Cr Quirk said the council would continue to maintain park and street trees and carry out major work but did not want to stand in the way of residents wishing to carry out minor work on public trees affecting their properties.

On-the-spot fines of up to $550 will also be introduced for offences including unauthorised interference with a protected tree.

Key tree species covered by the Natural Assets Local Law:

* Hoop Pine (Araucaria cunninghamii). Attains heights over 25m.

* Forest Red Gum (Eucalyptus tereticornis). Attains heights over 25m. Known for dropping large branches without warning.

* Jacaranda (Jacaranda mimosifolia). Grows to 15m high x 12m wide.

* Moreton Bay Fig (Ficus macrophylla). Grows, on average, 30 to 35 metres tall and 40 metres wide. The same species that famously fell over in New Farm Park.

* Leopard Tree (a common council street tree). Leopard Trees drop seed pods causing a slip hazard to pedestrians, aren't native and council no longer actively plants them.


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